Sunday, April 29, 2018

A tale of two past giants, two recent interviews, and a failed constitutional marriage


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Rajan Philips- 


"We must try and marry the two ideas – the Executive elected by the people and the Parliament elected by the people." - J.R. Jayewardene


They haunt us still. Colvin R. de Silva and JR Jayewardene, that is: they were two classmates, schoolmates and friendly boxing rivals, who rose to colossal heights in this little country’s constitutional evolution. JRJ won the ultimate political power in the late evening of his long political life. Colvin never won power, but he was always powerful and he would have been powerful anywhere. Colvin by the sheer force of his personality, that included his formidable intellectual prowess, exceptional persuasive skills and utmost patience to suffer fools, presided over the dissolution of our ties to British monarchy while preserving the parliamentary system that we got from the British and made it the matrix of our political society. JRJ took over from where Colvin left but he (JRJ) came to the game with the kind of political power that no other Sri Lankan leader, either before or after him, has ever received from the electorate.


To be sure, the scale of JRJ’s victory was more fortuitous than it was the endorsement of his rather idiosyncratic agenda. But no matter how political power landed on his lap, it gave him the wherewithal to put in place a political scheme that until then had convinced no other Sri Lankan political leader as suitable for the country except Mr. Jayewardene himself. He changed Sri Lanka’s constitution, barely five years old after Colvin had finished with it, to have an elected executive President with an elected parliament. In his own words, as I have quoted above, President Jayewardene wanted to marry the two. But the marriage has not worked well at all. I would argue that it has been a total failure and it is the parliament that is the poorer for it. The two are too incompatible to cohabit. In the end, it is the parliament that became redundant and eventually incompetent.


In fairness to JR Jayewardene, he was too much of a parliamentarian to actually scheme for the withering away of parliament under the dominance of the executive presidency. In fact, he categorically told Prof. AJ Wilson that he (JRJ) was not in favour creating in Sri Lanka "the kind of administrative state" as in France, where the French President has a "bureau of overseeing administrators who initiate action, intervene in ministries and coordinate policies" and virtually command key sections of the government. In contrast, President Jayewardene told Wilson, "I wish (the President) to have only his Prime Minister and the Cabinet of Ministers as Advisers because they represent the people as Members of Parliament."


But his intentions have been undone both by the provisions of his constitution, and where they are not bad enough by the manner in which his successors operated the constitution. The Prime Minister was reduced to a peon, parliament was subordinated, and the President became not only Head of State and Head of Government, but also Head of the Cabinet, in a uniquely triple concentration of roles and powers. The marital failure was not unanticipated. During the constituent assembly debates in 1970 when JR Jayewardene first mooted the idea of an elected president and elected parliament, Dr. Colvin R. de Silva exposed the inherent contradiction in the idea of the marriage, calling it a ‘redundant counter-posing’ of two elected agencies. Prophetic words, they are as powerful as powerful institutions. And they haunt us still!


Current Parliamentary Incompetence


There were two news conferences last week that that shed plenty of light on our current state of politics and what is likely to unfold in the near future. The first was what I am tempted to call a swashbuckling interview by the National Elections Commission (NEC) Chairman Mahinda Deshapriya to the national media. Answering questions from probing and even provoking journalists, Mr. Deshapriya laid bare the level of incompetence to which our parliament has sunk. The pathetic procedural delays over the Provincial Council election legislation are a sad commentary on how parliament is being run on a day to day basis. The parliament’s legislative savvy is now a national joke, after the results of the local government elections in which the total number of elected members in our local bodies ballooned from about 4,486 to 8,356 under the new hybrid system of elections. Yet, no one in the cabinet or legislature saw it coming until everyone saw it after the fact.


Mr. Deshapriya effortlessly shot down as "baseless" a journalist’s seemingly omniscient query if the doubling of the number of elected local government officials is the result of interventions by local NGOs with foreign (government) funding. The NEC Chairman gave the chronology of parliament’s labour in deciding the total number of elected officials: it has been going on from 2012 (i.e. two to three years before the ‘regime change’ that too is baselessly alleged to be the work of foreign forces), was revisited in 2016 and 2018, was vetted by the Supreme Court, and was passed in parliament by government and opposition support. So, where are the foreign forces here, and who are they? Or, for that matter, who and where are the foreign forces either in the defeat of the no-confidence motion, or in the JVP’s proposed 20th Amendment? When there is nothing else to pull for easy political mileage, just pull out of thin air the bogey of foreign forces.


What is not clear to me in the local elections arithmetic is the basis of the claim that such a huge increase was necessary because of the change to ensure that 25% of the elected members in each authority are women. Why was it necessary to increase the number of elected members in each local authority to ensure women’s representation at 25%? Is it because someone did not want to reduce the number of seats available to men in order to give legitimate representation to women who are more than half the population? That’s a funny, or perhaps not so funny, how do you do? Even then, there was no need to virtually double the total number of local council members in all local authorities. Is too much to ask of Minister Faizer Mustapha, who is supposed to be a legal luminary, to make a comprehensive statement in parliament, explain the background to this local election fiasco, and outline how the government is proposing to fix this while there is much public interest about it?


Gratifyingly, at least to this writer since I have been harping on it from time to time, Chairman Deshapriya also took strong exception to the tendentious ploy of elevating local elections to the status of a national plebiscite. With folksy wisdom, he recalled how local elections were held when we were young, when there was nothing of the kind of national fuss or fanfare as there is now. Now, editorial commentators go to town plying this ploy and legal luminaries rise on their hind legs in the apex court to learnedly argue that nothing less than a fifth of the national sovereignty is at stake in the local elections. A fifth, because the Jayewardene Constitution divides sovereignty into five parts: legislative, executive, judicial, fundamental rights and franchise. No one bothers about the constitutional text that exclusively ties the franchise to presidential and parliamentary elections and, of course, the Referendum. Local government is important but its elections are not an extension of the ‘sovereign franchise.’ Nor are they a surrogate for national parliamentary elections.


The most insidious aspect of the new system is that the allocation of 60% of the seats in a local authority, to single-member or multi-member wards, does not mean that the voters get to elect their ward members directly. No, they are a constrained to mechanically vote for a party and the contesting parties submit two lists, one for the 60% ward members, and the other for the 40% PR numbers. Based on the number of votes cast for each party, it is left the Election Commission officials to determine the winners from ‘Ward’ list and the PR list. So it is the political party leadership and bureaucracy that determines who will be your ward member.


We can draw two lessons from Mr. Deshapriya’s interview and local elections fiasco. First, our parliament doesn’t know what it is doing, and, two, when it comes to elections it is the party machine that is running the show and not the people who cast their vote. Based on them we can also conclude that the current parliamentary incompetence and the rise in the power of political party machinery are the direct results of the failed marriage of the elected executive and the elected parliament, and the corrupt system proportional representation that has been for the parliamentary election.


The JVP News Conference


The second news conference was by JVP leader Anura Kumara Dissanayake, who took the opportunity to explain the JVP’s proposal for a Private Member’s Bill to amend the constitution for the twentieth time. Mr. Dissanayake was necessarily open that the JVP needs to persuade and canvass the support of all the parties in parliament because the JVP alone with its six MPs cannot even get a debate on the bill going. The JVP cannot and is not trying to pull a constitutional veil over anyone’s eyes. But the JVP’s critics can and they are doing it with obfuscation and slander.


It should be clear to everyone that there cannot be a total abolishment of the presidency, simply because it is not possible to do so. But the opponents of the 20th Amendment will have none of and will talk only about abolishment and the vacuum it is going to create. All that the 20th Amendment can and must do is to redefine the relationship between the President and the Parliament, which would invariably involve redefining the roles and functions of the Head of State, the Head of Government and the Cabinet of Ministers. The powers vested in the President by the 1978 Constitution are simply incompatible with the proper functioning of parliament. To wit:


Unlike in the American system which is based on the separation of powers, the Sri Lankan President, until the 19th Amendment, and despite the constitutional claims to separation of powers, exercised total control over parliament. He could "summon, prorogue and dissolve parliament" (Chapter 11, Article 70), and parliament would have no say in it. Only the President, and not the Speaker, would certify a bill passed by a referendum (11, 80). He can in his discretion submit for ratification in a referendum a bill that has been defeated in Parliament (13, 85(2)). It is the President who establishes and appoints members of the Delimitation Commission that carries out the demarcation of electoral districts for parliamentary elections (14, 95), and proclaims by publication the names and boundaries of the demarcated districts (14, 97). And finally it is the President who appoints the Commissioner of Elections with no input required from the cabinet or parliament (14, 103 (1)), although he can be removed by the President only upon an address of Parliament (14, 103 (3)).


Again unlike under the French Constitution, the Sri Lankan Constitution, until the 19th Amendment, thoroughly subordinated the Prime Minister and the Cabinet of Ministers to the President. It was no more the Prime Minister as head of the cabinet, being primus inter pares (first among equals) that used to be the underpinning of cabinet government. Under the Sri Lankan presidential system, the President, like the Roman Emperor, became "princeps" or " dominus, vis-à-vis the Prime Minister and the cabinet. According to AJ Wilson, the 1978 Constitution made the president "far more powerful than a prime minister could have been under the former system." Under different provisions of the constitution it is the President who has sweeping powers over all major appointments in the state machinery, with no accountability to parliament. These powers have somewhat been reduced after the 19th Amendment.


Specifically, the President is only "responsible" to parliament, and not answerable to it (8, 42) – a crucial difference, for AJ Wilson, who also notes that the Standing Orders of the House do not permit any censuring of the president or his actions by parliament. Although the President is a member of the cabinet and is the Head of the cabinet, he shall continue in office even when the cabinet stands dissolved (8, 42). He wields unrestrained power to appoint and dismiss ministers and assign responsibilities (8, 44); appoint ministers who can function directly under him without being part of the cabinet (8, 45); and appoint deputy ministers in consultation (a rare instance till the 19th Amendment) with the Prime Minister (8, 46). Most importantly, the President, till the 19th Amendment, could get rid of the Prime Minster at whim (8, 47).


Further, under Article 8, 44 (2), the President can assign himself any subject or function. In practice, this led to the presidents ‘usurping’ the Ministry of Finance. It started with President Premadasa, and was picked up by Chandrika Kumaratunga and Mahinda Rajapaksa.The practice continued even after the arrival of the yahapalanaya twosome, with the difference that it was the Prime Minister, and not the President, who usurped not the whole Ministry of Finance but just yanked the Central Bank out of the Finance Ministry and brought it under his wings. That set the stage for the now infamous bond scam and the saga continues with the Interpol search for the former Governor of the Central Bank. There could be a rebirth of the old scandal in parliament if Ravi Karunanyake were to be reinstated as a Minister, in his capacity as the Assistant Leader of the reformed (sic) UNP. Who knows? If that were to happen, it must not be the executive presidency that should take the blame.